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2020 DIGILAW 487 (KAR)

Moin S/o. Abdul Gafar Sab v. State of Karnataka

2020-02-18

SURAJ GOVINDARAJ

body2020
ORDER : 1. The petitioner is before this Court seeking for quashing of the complaint and FIR registered in Crime No.28/2018 filed by Cowl Bazaar Police Station, Ballari pending on the file of II Additional Civil Judge (Jr.Dn) and JMFC, Ballari the proceedings initiated against the petitioner for the offences punishable under Sections 78(iii) of Karnataka Police Act, 1963 and Section 506, 420, 323 r/w 34 of IPC, which are non-cognizable in nature. 2. It is alleged that on 14.01.2018, PSI, Cowl Bazaar Police Station registered a case in Crime No.28/2018 for the above offences against the petitioner on the basis of complaint filed by a private person namely Shaikh Mohammad, the complainant is an Auto driver. The accused No.1 had approached the complainant and informed him that he and petitioner are doing mataka business and investing the same. It is alleged that the complainant won a sum of Rs.4,50,000/-, which is not paid by the accused. They had issued a cheque which is dishonored for in-sufficient funds and thereafter when the complainant approached the first accused, he refused to make payment of the amount and had in fact assaulted him. 3. Sri. M.l. Vanti appearing for the petitioner would contend that the complaint has been made by a private person, who is also alleged to have played mataka, therefore, the complainant having indulged in prohibited activity could not file the above complaint. 4. He further submits that allegation, if any, is made against accused No.1 and not against petitioner No.1 and that the procedure under Section 155 (2) of the Cr.P.C. have not been followed. 5. Learned HCGP submits that this is not a case, where the Police have registered the case and investigated. It is the private complainant who had filed the complaint and it is at his instigation the investigation was taken up. The private complainant has categorically made allegations as regards cognizable offences and therefore, no permission would be required to be taken from the jurisdictional Magistrate before registering the complaint or investigating the matter. 6. Embargo under Section 155(2) could only apply in case proceedings are initiated by the Police authorities and not that initiated on the basis of the private complaint. In this regard, he relies on the judgment of this court in Sri.Nabisab S/o. Shek Imamsab V/s. The State of Karnataka in Crl.P.No.3365/2016 and other connected matters. 7. Heard Sri. 6. Embargo under Section 155(2) could only apply in case proceedings are initiated by the Police authorities and not that initiated on the basis of the private complaint. In this regard, he relies on the judgment of this court in Sri.Nabisab S/o. Shek Imamsab V/s. The State of Karnataka in Crl.P.No.3365/2016 and other connected matters. 7. Heard Sri. M.L. Vanti for the petitioner, learned HCGP for respondent and perused the papers. 8. It is seen that the offences which have been alleged against the petitioner are only that under Karnataka Police Act, which are non-cognizable in nature, if at all, it is only as regards accused No.1 against whom cognizable offences have been alleged. Sri. M.L. Vanti submitting that the cognizable offences have been added only to take forward the investigation by the Police also deserves consideration. In that there are no particular details, which shows that the cognizable offences have been committed by the accused. If such cognizable offences are eschewed, what remains are the non-cognizable offences under the Karnataka Police Act, under such circumstances, it is required that the mandatory requirements under Section 155(2) are followed which have not been followed. 9. A perusal of the record available would indicate that no such permission from the jurisdictional Magistrate has been obtained. Therefore, there being a substantive violation of the mandatory procedural law. The proceedings cannot be continued against the petitioner herein. 10. In view of the above, I pass the following: ORDER (i) The petition is allowed; (ii) The proceedings initiated against the petitioner in Crime No.28/2018 by the Cowl Bazaar Police Station, Ballary pending on the file of II Additional Civil Judge (Jr.Dn) and JMFC, Ballari are hereby quashed ; (iii) Liberty is however reserved to the jurisdictional police to obtain necessary permission from the jurisdictional Magistrate and initiate the investigation as regards the petitioner. In terms of the above direction, the petition is disposed of.